international law essay

The International Labour Organisation And Labour Standards International Law Essay

Globalization has created many opportunities and benefits for many countries and its citizens, however at the same time, it has created problems for millions of workers and employers all over the world. Every country desires to gain a competitive edge, and in doing so, many do not follow somewhat fair labour standards, for example, Jacques Necker, a Swiss banker, argued in 1788 that if France eliminate the Sunday rest day its competitive position will improve only if other countries did not follow the same (Hepple, B., 2005). International labour standards are mainly focused on the development of people as human beings. In the ILO's Declaration of Philadelphia of 1944, the global society accepted that "labour is not a commodity". Undeniably, labour is not like an apple or a television set, a non-living product that can be bargained for the highest profit or the lowest price. Economic development should comprise of the making of jobs and favourable working conditions in which people can work in freedom, safety and dignity. In short, economic development is not undertaken for its own sake but to develop the lives of human beings; international labour standards are there to make sure that it remains persistent on improving human life and dignity (ILO, 2010). This essay will mainly focus on the establishment, the role and history of ILO, the four core labour standards and how they are made, how these standards are monitored and supervised, followed by criticism and the conclusion.

The International Labour Organization (ILO)

The ILO was created in 1919 to promote social progress and to surmount social and economic conflicts of interests with the help of dialogue and cooperation. In contrast to the revolutionary movements of that time, it brought together governments, employers and workers at an international level to search for common rules, policies and behaviours from which all could benefit. The ILO was built on the belief that peace and justice go hand in hand. Not in the sense that war is always the result of injustice, but rather that social justice is an essential foundation for peace (Servais, 2005). Three organs administer and carry out its work: the annual International Labour Conference of the entire membership; the Governing Body, elected by the Conference, which meets thrice a year; and the Office, managed by the Director-General, who is elected by the Governing Body. The ILO’s first constitution was prepared by the Commission on International Labour Legislation of the Peace Conference in 1919 and created part of the treaty of Versailles. This was the very first effort to create universal organizations to deal with the social and economic problems faced by the world in the early 20th century. The Constitution laid the foundation for the Organization, spelled out its aims and purposes as well as its detailed design and also identified certain “methods and principles for regulating labour conditions which all industrial communities should endeavour to apply, so far as their special circumstances will permit" which are of “special and urgent importance". This vision of the constitution was taken a step further in a powerful declaration which was approved by the Organization at a conference help in Philadelphia in 1944 and was incorporated in its constitution. Today, by and large, the goal is devised as “decent work", a notion which creates rights at work, employment and social protection into an overall vision, pursued through social dialogue, and which pays particular attention to the common reinforcement of action in different fields. The decent work goal is rooted in the most recent ILO Declaration, on Social Justice for Fair Globalization. In 1946, It became a Specialized Agency of the United Nations and was awarded a Nobel Peace Prize and in 1969 (Servais, 2005). The ILO differs from other intergovernmental organizations in two ways, the first is Tripartism, i.e, the participation of employers representatives, the employee representatives and government delegates. The second is the particular ways in which international labour standards are adopted, ratified and supervised. Tripartism is based on the article 3 of the ILO constitution which states that “The ... General Conference ... shall be composed of four representatives of each of the Members, of whom two shall be Government delegates and the two others shall be delegates representing respectively the employers and the workpeople of each of the Members." (Servais, 2005).

International labour standards are legal mechanisms drawn up by the ILO’s constituents (governments, employers and workers) framing fundamental principles and rights at work. They are either conventions, which are lawfully obligatory international treaties that can either be ratified by the member states, or recommendations, that provide a non-binding guideline. In many cases, a convention lays down the basic ideology to be put into operation by ratifying countries, while an associated recommendation supplements the convention by giving more comprehensive course of action on how it could be applied. Recommendations can also be independent, that is, not related to any convention. Conventions and recommendations are crafted by the representatives of governments, employers and workers and are taken up at the ILO’s annual International Labour Conference. Once a standard is adopted, it is compulsory for the member state under the ILO Constitution to submit them to their expert authority (normally the parliament) for consideration. In the case of conventions, this means consideration for ratification. If it is ratified, a convention is normally applied after one year of the date of ratification in that country. Ratifying countries bound themselves to applying the convention in their national law and practice and to reporting on its application at regular intervals. If the country violates the convention they have ratified, representation and complaint procedures can be initiated (ILO, 2009).

The ILO’ has identified eight conventions as “fundamental", covering areas that are considered as fundamental principles and rights at work: freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation. These principles are also covered in the ILO’s Declaration on Fundamental Principles and Rights at Work (1998). In 1995, the ILO launched a campaign to attain universal ratification of these eight conventions. There are currently over 1,290 ratifications of these conventions, representing 88.5% of the possible number of ratifications (ILO, 2009).

How are International Labour Standards Created

International labour standards develop from an increasing international concern that action needs to be taken on a particular issue, for example giving working women maternity security, or ensuring safe working atmosphere for agricultural workers. The International Labour Standards are developed in a unique legislative way involving representatives of governments, workers and employers from around the world. As a first step, the Governing Body agrees to put an issue on the agenda of a future International Labour Conference. The International Labour Office then prepares a report that examines the laws and practices of member states with regards to the issue. The report is then distributed to member states and to workers’ and employers’ organizations for remarks and is again discussed at the International Labour Conference. A second report is then prepared by the Office with a draft instrument for comments and is given in for discussion at the following Conference, where the draft is modified as necessary and projected for implementation. This “double discussion" gives Conference participants ample time to scrutinize the draft instrument and make remarks on it. A two-thirds majority of votes is necessary for a standard to be implemented. The International Labour Conference has recently started using an “integrated approach" with the aim of improving the consistency, significance and impact of standards related activities and developing a plan of action that represents a logical package of tools to deal with a specific subject. These tools may comprise of conventions, recommendations and other types of instruments, promotional measures, technical assistance, research and dissemination of knowledge, and inter-agency cooperation. This approach was first used in 2003 for the purpose of developing a global strategy to progress the work-related safety and health worldwide, this approach was used in 2004 to look at the issue of migrant workers, in 2005 for the problem of youth employment, in 2007 for the support of sustainable enterprises and in 2008 for the problem of rural employment (ILO, 2009).

Ratification

Once the member state has adopted a convention at the International Labour Conference, it is required to submit it to their national competent authority for the ratification of appropriate legislation or other action. Normally, the convention comes into force after a period of 12 months after being ratified by 2 member states. It is a formal procedure where a member state recognizes the convention as a lawfully binding instrument. Once it has ratified a convention, the member state is subject to the ILO’s regular supervisory system accountable for making sure that the convention is applied (ILO, 2009)

Universality

The standards are implemented by the 2/3rd majority of votes of the ILO constituents and are therefore universally recognized principles. At the same time, it reflects the fact that all member states have a diverse cultural and historical background, legal system and different levels of economic developments thus making it generalized. Most of the standards have been devised in such a way that makes them flexible to fit in the national law and are practiced with due consideration of these national differences. For example, standards such as minimum wages does not require the member state to set a minimum wage but to set up a system and the apparatus to fix minimum wage rates suitable to the countries’ economic development. Other standards have so-called “flexibility clauses" enabling the member states to put down short-term standards that are lower than those that are normally prescribed, to prohibit certain groups of workers from the application of a convention, or to apply only certain parts of the instrument. Ratifying member states are normally required to make a statement to the Director-General of the ILO if they use any of the flexibility options, and to make use of such clauses only in consultation with the social partners. Reservations to ILO conventions, however, are not permitted (ILO, 2009).

Changing environment

In respect to the changing world and economic environment, it is essential to update the international labour standards. At present there are 188 conventions and 199 recommendations of which some date back to 1919. As one can conclude, some of the instruments cannot be used in today’s world. To solve this issue, ILO adopts “revising conventions" that replaces the older ones, or “protocols" which add new provisions to the old conventions. The ILO has the right to approve the withdrawal of some recommendations od conventions which have not been taken into force. Between 1995 and 2002, the governing body reviewed all the ILO standards, except the fundamental and priority conventions, adopted before 1985 to see if there is a need to revise them. As a result of that, some 71 conventions including the fundamental and priority conventions were announced as up-to-date and recommended for active promotion. As for the rest of the convention, the governing body decided that some were out dated, some needed to be revised and for some others, further study was required. In addition, in 1997 the International Labour Conference adopted a modification to the ILO Constitution which would allow for the abrogation of a convention in force but renowned as out of date, if 2/3rd of the Conference delegates voted for such a measure. This modification has been ratified by more than 100 member states but still falls short of the needs essential for it to come into force (ILO, 2009).

The Core Labour Standards

According to the ILO’s Declaration on Fundamental Principles and Rights at Work (1998), there are four core labour standards namely; freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation (ILO, 2009).

Freedom of Association and right to Collective Bargaining

Freedom of association is one of the core of the ILO’s values: it is protected in the ILO Constitution (1919), the ILO Declaration of Philadelphia (1944), and the ILO Declaration on Fundamental Principles and Rights at Work (1998). It is also a right declared in the Universal Declaration of Human Rights (1948). For sound collective bargaining and social dialogue, the right to organize and form employers’ and workers’ organizations is essential. On the contrary, there are challenges in applying these principles in different countries. For example, in some countries certain categories of workers (for example public servants, seafarers, workers in export processing zones) are deprived of the right of association, workers’ and employers’ organizations are unlawfully suspended or hindered with, and in some extreme cases trade unionists are even arrested or killed. ILO standards, in concurrence with the work of the Committee on Freedom of Association and other supervisory mechanisms, craft the way for resolving these complications and make certain that this primary human right is valued all over the world (ILO, 2009). International Confederation of Free Trade Unions (ICFTU) estimated that, in Asia at least 17 trade unionists were killed, 947 others were beaten or tortured, and over 8,000 were arrested in 2005. In Latin America, not less than 80 people were killed only for being union members and trying to protect their rights, 275 trade unionists received death threats, over 480 were tormented, beaten or injured and around 1,700 were unfairly dismissed. The majority of the 50 million workers in export processing zones do not enjoy the right to join unions (ILO, 2009).

Freedom of association ensures that workers and employers can associate to efficiently negotiate work relations. When joint with strong freedom of association, sound collective bargaining practices makes sure that employers and workers have an equal voice in dialogue and that the conclusion will be fair and reasonable. With the help of collective bargaining, both sides can negotiate a fair employment relationship and avoid expensive labour clashes. Undeniably, research has shown that countries with well synchronized collective bargaining tend to have less disparity in wages, lower and less persistent unemployment, and fewer strikes as compared to countries where collective bargaining is less established. Recognized collective bargaining practices were a building block that allowed the Republic of Korea to weather the Asian financial crisis and enabled South Africa to make a comparatively peaceful evolution into the post-apartheid era. ILO standards encourage collective bargaining and help to make certain that good and fair labour relations benefit everyone (ILO, 2009).

Forced Labour

However, forced labour is condemned at a global scale, millions of people from around the world are still subject to it. Traditional slavery can still be found in some parts of Africa, whereas forced labour in the form of coercive recruitment can still be found in many countries of Latin America, some parts of the Caribbean and elsewhere. There are many examples of countries where workers are trapped in force labour and in many cases they are restrained to leave the employment through threats and violence. Bonded labour exists in parts of South Asia, Pakistan and India where the entire family is forced to work through a vicious cycle of debt. In Europe and North America, women and young children are victims of traffickers and are sold into forced prostitution or sweatshops. For many governments around the world, the issue of forced labour has been a major concern of the 21st century. Forced labour is a serious violation of the fundamental human rights and is the cause of poverty and a barrier to economic development. ILO standards on forced labour combined with targeted technical assistance are the primary international tools for fighting this scourge (ILO, 2009).

More than 60 cases of progress in the struggle against forced labour has been noted by the ILO’s Committee of Experts on the Application of Conventions and Recommendations in the last 10 years. For example, although Nepalese Constitution forbids forced labour in any form, around 1.2 million Nepalese were victims to slave-like practices under a debt-bondage system known as kamaiya in the 1990s. People were forced to work in agricultural sites while being bound by debt to work for the landlords. In the late 1990s, the Nepalese government decided to tackle this situation with a view to ratifying the Forced Labour Convention, 1930 (No. 29). With the help of technical assistance of the ILO, in 2002 Nepal passed the Bonded Labour (Prohibition) Act which clearly forbids forced and bonded labour. To eradicate the kamaiya system from Nepal, ILO played a major role by helping to build up organizational and bargaining skills as both workers and landowners adjusted to the conditions of free labour. As a result, Nepal ratified Convention No. 29 in 2002, which has in turn facilitated the Committee of Experts to observe the development related to this issue, both in terms of law and in practice (ILO, 2009).

Child Labour

Child labour is also a serious violation of the basic human rights and has been the major element to hold back children’s development thus leading to lifelong physical or psychological damage. Evidence suggests a strong link between household poverty and child labour, and child labour spreads across generations by keeping children out of schools and limiting their development. A recent study by ILO suggests that by eliminating child labour in developing countries, it could generate economic benefits by as much as seven times greater than the cost mostly associated with better schooling and social services. The ILO standards on child labour are primary international legal tools to combat this issue. The ILO estimates that around 166 million children between the age of 5 and 14 and around 218 million between the age of 5 and 17 are victims of child labour around the world.

Brazil has been using international labour standards to fight against child labour for over fifteen years. In 1991 Central Única dos Trabalhadores (CUT) created the National Commission for the Defence of the Child and Adolescents’ Rights, whose purpose was to enforce the law of children and the promotion of the ratification of the ILO minimum age convention, 1973 (No. 138). With the help of ILO’s International Programme on the Elimination of Child Labour, NGOs, research centres, social institutions and national and international trade unions, CUT led flourishing efforts to embrace clauses on children’s rights and labour in collective bargaining agreements, carried out studies and surveys to assess the actuality of child labour abuse in Brazil, and produced radio programmes, booklets and posters as part of awareness raising activities. These efforts were worth doing as Brazil has now ratified both Conventions no. 138 and 182 on child labour, and is now committed to eliminate child labour within an international legal framework (ILO, 2009)

Discrimination

Millions of men and women around the world are victims of discrimination and are denied access to jobs and training, receive low wages, or are restricted to certain occupations simply on the basis of their sex, skin colour, ethnicity or beliefs, without taking into consideration of their potential and expertise. For example, in many developed countries, women workers earn up to 25% less than their male counterparts performing similar work. Freedom from discrimination is a basic human right and is crucial for workers to choose their employment freely, to build up their potential to the full and to bring in economic rewards on the foundation of merit. Incorporating equality into the place of work has considerable economic benefits too. If the employers practise equality, they have access to a larger and more diverse workforce. Benefits like training, higher wages and improved quality of the workforce are accessible by the workers who enjoy equality at work. ILO standards on equality provide tools to get rid of discrimination in all aspects of the place of work and in the society as a whole. They also provide the foundation upon which gender mainstreaming strategies can be applied in the field of labour (ILO, 2009).

Application and Promotion of International Labour Standards

The International Labour Standards are backed by a unique supervisory system that helps to make sure that the countries implement the conventions that they have ratified. The ILO constantly examines the application of the labour standards in the member countries that have ratified them and helps them by pointing out where they could be better applied. If there is a problem in the implication of the standards, the ILO helps the country by providing technical assistance and social dialogue (ILO, 2009).

Once a country has ratified a convention, it is necessary to submit a report every two years for fundamental conventions and every five years for all other conventions detailing the measures they have taken to implement the conventions. The government is also required to send a copy of the report to the employers’ and workers’ associations for their comments on the report which then can be directly sent to the ILO office (ILO, 2009).

The Committee of Experts was set up in 1926 to examine the number of reports by governments on ratified conventions. The experts come from different geographical, legal and cultural backgrounds and their role is to provide an unbiased and technical assessment of the state of application of international labour standards. The annual report of the committee is presented in the International Labour Conference which is made up of government, employers and workers delegates. It examines the report and the governments who have been commented in the report are invited before the committee to provide further information on the issue. In many cases, the outcome is recommendations to the government or to invite ILO for technical assistance. Since 1964, the committee has kept a track of cases of progress which noted the changes in the law and practice which improved the application of the ratified conventions. To date, over 2,600 cases have been noted (ILO, 2009).

A complaint system is also in place in the ILO. A complaint may be filed against a member state which is not complying with the ratified convention by another member state who has ratified the same convention. Once the complaint has been filed, a commission of inquiry is set up which then after considering all the facts, makes recommendation measures to be taken to address the problem. To date, 12 Commissions of Inquiry have been established, the latest one was a complaint filed against the Government of Zimbabwe in November 2008 (ILO, 2009)

Poland ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) in 1957. In 1981, when martial law was imposed in the country, the government suspended the activities of the Solidarnosc trade union and detained or sacked many of its leaders and members. After the case was examined by the committee, a complaint was filed against Poland. Based on the commission’s conclusion, the ILO and other member countries put pressure on Poland to restore the situation, and in 1989, the Polish government gave Solidarnosc trade union a legal status (ILO, 2009).

Critique

Over the past years, there has been a significant decline in the ILO standard-setting. In the first two decades, an average of 3 conventions were adopted every year and in 1946-66, an average of 2.6 per year. In the next two decades, the rate was 1.6 year and in 1987-96, just 1.9 per year. From 1997-2004, only 5 conventions have been ratified and none in 1998, 2002 and 2004. Many argue that the reason for this decline is the ‘overproduction’ of ILO instruments. Cordova calculated that in 1990, there were over 2,100 substantive labour standards in the then 170 conventions in addition to 2,500 guidelines in the 180 conventions. The whole body had around 10,000 sections. He concluded that ‘not even in the most regulatory-prone countries is it possible to find such an extensive number of norms’ (Hepple, B., 2005). The system of reporting and supervision deals with both the legislative compliance with instruments as well as with their implementation in practice. Some countries believe that they are unfairly targeted by harsh criticism by ILO and the western ideas and values are applied or feel that there should be flexibility and considerate of the obstruction to strict traditional values (Servais, 2005). Some argue that any artificial attempts to raise the standards such as those contained in the international labour law, are bound to fail, and eventually deform the functioning of the labour market and thus be counter-productive. If any sanctions flowing from claim upon labour standards would be a violation of rights, property and contract and thus should be avoided (Yoon, Y. And McGee, R. W., 2003). Some critics say that the core labour standard track is complimentary to the standard track and in no way seeks to undermine it. Legislative approaches, such as those in the traditional labour standards regime are unworkable in most developing countries. The old standard regime was a failure and the new approach is the best alternative to offer. And it is too early to judge the new regime a failure. These responses come from different sources (Alston, P., 2004)

According to Anil Verma, he suggests that the impact of international efforts are incomplete merely due to two main problems: restricted reach to the North-South separation over how to effectively regulate labour standards and second he recommends pursuing process standards in place of familiar substantive standards. For the first point, he suggests a two-split strategy, it recommends that the procedure of developing codes of conduct be simulated within every ILO member state at a national level. By doing this, national and sub-national governments would have a much larger role to play in supporting the international efforts. Furthermore it would internalize the labour standards discussion within each country to the point where improved labour standards would not be seen as an external obligation by developing countries. And for the second problem, each member state would bound to a procedure of monitoring, consultation, etc. to advance standards but would create its substantive standards through a independent internal process rather than agree to an global externally-imposed standard (Verma, A., 2003).

The problem with social dialogue model is that it becomes an imaginary tale if there are weak or no trade unions or employers’ organisations at the national level. This is the case in many of the states which joined the ILO in the post-colonial period (Hepple, B., 2005)

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